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Answers to tricky HR questions: Can we fire worker on medical marijuana?

by July 13, 2010 4 Comments

Our team of experts fields real-life, everyday questions from HR managers and gives practical answers that can be applied by any HR pro in the same situation. Today’s question: Do we have to accommodate an employee on medical marijuana? 

Question:

One of our workers just failed his drug test, but he informed us that he’s using medical marijuana. Problem is, we have a pretty strict anti-drug use policy. Can we fire him, or do we have to accommodate him?

Answer:

You’re within your rights to fire him, says Rich Meneghello (rmeneghello@laborlawyers.com) of the law firm Fisher & Phillips.

Under federal law, you’re free to apply zero-tolerance policies on drug use and other inappropriate behaviors.

You can discipline staffers who violate the policy, and refuse to hire applicants who fail drug screenings — regardless of their medical marijuana registry status.

Tip: Issue the policy in writing to all employees, informing them that medical marijuana is prohibited just like any other “recreational” substance.

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  • Mike

    So if this person has a legitimate prescription from the doctor (and the State in question legally recognizes medicinal marijuana) for the “medicinal” marijuana, the person can be legally fired? Are there not potential ADA ramifications? How is that any different than say someone who is legitimately taking hydrocodone, prescribed from a doctor, to treat, say back pain. That drug can also be misused or abused recreationally. Would the person be fired because it will show as an opiate on a drug urine screen and the employee says “I’m taking it because it is prescribed for me!” That line could be used for someone prescribed medicinal marijuana. I understand if the use is determined to cause potential injury for self or others, the employee may have to take leave until the medication is no longer used and it is determined that the drug effects will not cause potential injury. Personally, I have little faith in “medicinal” marijuana use. Having been an Addictions Therapist, I believe the the medicinal marijuana push is just a guise to get it legalized. However, there are States buying into this belief. If it is treated as a legitimate drug to be prescribed, I’d be a little hesitant to fire someone if they are taking a legitimate prescribed medication, albeit marijuana. Interesting what the law firm advocates.

  • HRPerson

    From what I understand after speaking with our MRO is even if they have a Medical Marijuana card, that doesn’t give them the OK to smoke it it justs keeps them from getting in trouble with the law if they have some on them. If they have an actual prescription for Marinol which is the pill form that is prescribed for chemo, AIDS…..patients and they test positive to marijuana then the MRO can differitiate the difference between the smoked form & the pill form.

  • RandiG

    Mike, the federal government doesn’t recognize ‘medical marijuana’ and possession is still against federal law, regardless of state law. Since federal law trumps state law every time, the attorney is correct.

  • Maggie

    I don’t have a problem with medical marijuana for terminal patients and those being treated with chemo. I do have a problem with its use by those who are in the active work force. I would terminate any employee found to be smoking marijuana or testing positive for smoking it. On our work site, it would be much too dangerous to allow it. OSHA is all over us for every little thing. I don’t need the headache of explaining why we had someone test positive for marijuana that was injured at work or caused the injury of a co-worker.

    For employers, it is a safety nightmare and can’t be tolerated. Mike: I would not tolerate an employee using hydrocodone either. It is a narcotic and again a safety hazard. I would suspend the employee until they were off of it. I would prefer to put an employee on short term disability and have them go through therapy, etc and come back to work without heavy duty drugs.